Today in Supreme Court History

Today in Supreme Court History: January 4, 2012

|The Volokh Conspiracy |

1/4/2012: President Obama makes three appointments to the NLRB. The Supreme Court would find these appointments unconstitutional in NLRB v. Noel Canning.

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  1. And therefore construes the Recess Appointments Clause into nonexistence. The Senate can all by itself stop the Executive Branch from functioning, just by refusing to act on the President’s nominations.

    1. The Senate could also refuse to accept any nominee even while in session. Or, horrors, they could refuse to pass any other bill, like a budget! They could shut down the US government altogether!

      Oh the horrors, the horrors!

      1. About the level of maturity we’ve come to expect from the Tea Party types.

        Now you can go ahead and check your (federally funded) weather report and drive on the (federally constructed) interstate. Unless you want to stay home and continue to abuse the (federally created) internet.

        1. Gosh, only the government could have created the internet. I did not know!

          No one except government ever built roads. I did not know!

          Thank you for your government-funded enlightenmet.

          1. The disaffected, anti-social, anti-government malcontents will always be among us. And will always be inconsequential in a modern, improving society.

            Thank goodness for the culture war. And its results.

    2. “And therefore construes the Recess Appointments Clause into nonexistence.”

      How so?

      1. “the Senate is in session when it says it is”

        From the majority opinion. There’s no stopping point to that principle.

        1. No recess, no appointment. Seems about right.
          It is in recess at the end of each session, no?

          1. Not if it says it isn’t.

            1. You seem to be scared to death that everything would collapse if it were not for government, even to teh point of letting the Senate decide for itself when it is in recess. Maybe you need to get out and about a little more. Pick up a hobby or two which don’t depend on government permission.

            2. Recess appointments expire if not formally confirmed. There are better hills to die on.
              https://en.wikipedia.org/wiki/Recess_appointment

            3. In addition, it seems to me that Obama was the bad guy in this scenario. I can think of 9 more people that agree with me.

              1. Obama was trying to make the NRLB function again. It hadn’t had a quorum since 2007. The Senate, in “recess” or out of “recess”, refused to confirm his nominees.

                As for the Supreme Court, as it often does it refused to contemplate how destructive Republicans (and the “vast right wing conspiracy”) can be. (Example: Clinton v. Jones, 1997, where it allowed private civil lawuits against a sitting President; the most liberal Justice, Stevens, writing for a unanimous Court, rejected the argument that the Paula Jones lawsuit would disrupt the functioning of government or place a burden on the President’s time or energy.)

                Result: a Republican Senate can cause the federal government to grind to a halt, and disable a President with frivolous lawsuits, as the Jones lawsuit certainly was.

                1. Obama was free to nominate someone that the Senate would happily confirm. He didn’t and chose an illegal means to get his way. He lost and rightly so.
                  Divided government is a bitch.

                  1. “Obama was free to nominate someone that the Senate would happily confirm”.

                    You probably don’t have a good memory of those years. Time and again he nominated people who Republican Senators said would be good, but they opposed them as soon as they got nominated. Cf. Orrin Hatch’s praise of Merrick Garland.

                    1. I am grateful that we had this chance to interact. It forced me to go back and read about the Noel Canning decision as well as the history of the NLRB. The senate reached a deal on nominees in 2013- ” On July 16, 2013, President Obama and Senate Republicans reached an agreement to end the impasse over NLRB appointees.” Noel Canning wasn’t heard until January of 2014. They worked it out mostly because of Reid’s threat to end the filibuster. Taking issue with the Canning decision makes less sense than the filibuster if one is worried about a functioning government. We can quibble about the definition of “functioning”.

                      As for Garland, the same logic applies. Gorsuch would probably have been confirmed. Regardless, the government continued to function as designed.

                    2. You don’t have a very good understanding of “advise and consent”, or “takes two to tango”, or why “I have a pen and a phone” was not a good enough excuse to unilaterally enact laws by decree when Congress refused to obey Obama.

                      Someone who so obviously adores Obama almost certainly despises Trump. Would you really enjoy Trump using that same excuse of “non-cooperation” to single-handedly enact laws when Congress didn’t dance to his tune?

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